Summary
holding that a "clarifying amendment" does not apply retroactively in a motion for reduction of a sentence under Section 3582
Summary of this case from Cano v. United StatesOpinion
No. 08-30159.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 13, 2008.
Michael S. Lahr, Office of the U.S. Attorney, Helena, MT, for Plaintiff-Appellee.
Appeal from the United States District Court for the District of Montana, Charles C. Lovell, District Judge, Presiding. D.C. No. 6:00-cr-00003-CCL-1.
Before: TROTT, GOULD and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
We have received appellants' response to this court's August 13, 2008 order to show cause. A review of the record and appellants' response indicates that the questions raised in this appeal are so in-substantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).
As appellant concedes, the district court correctly noted that Amendment 709 to the United States Sentencing Guidelines, changing the manner in which criminal history points are scored, does not apply retroactively. See United States Sentencing Guidelines § 1B1.10(c) and United States Sentencing Guidelines Manual, Supplement to Appendix C, p. 240, November 1, 2007.
Appellant further acknowledges that even if the amendment at issue were a "clarifying amendment" that applied retro-actively, such retroactive calculation could only occur in the context of a direct appeal or a 28 U.S.C. § 2255 petition, and not in a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c).
Accordingly, we summarily affirm the district court's judgment.
All pending motions are denied as moot.